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Future directions in international regimes
10. The implications of global change for the
international legal system
11. Restructuring the international
organizational framework
12. Intergenerational equity: a legal
framework for global environmental change
13. Ecological security: response to global
challenges
10. The implications of global change for the international legal system
The impact of global change on different
functions in international law
The impact of global change on international
structures
Notes
Alexandre Kiss
Different theories explain in different ways the origin and the creation of legal norms.1 As far as international law is concerned, its development during the last 50 years seems to have been guided by the need to face situations created by political events or by scientific or technical evolution. The creation of international human rights law between 1948 and 1969, although intellectually prepared during the first half of the century, was a direct reaction to the massacres and atrocities of the Second World War, while international space law and the new Law of the Sea were responses to the conquest of outer space by man and to the evolution of the sea's uses.
Of course, in most cases, political or scientific factors do not act directly upon the orientations of a legal system. Their impact is made by the intermediary knowledge that we have of their nature and potential implications. Such knowledge must enhance awareness of the need to react to a given situation. The importance of these elements must be stressed since they motivate and explain action.
Thus, we must understand global change as the awareness of a situation threatening our whole biosphere. The word "change" means in fact "challenge": It reminds us of the antic fable of the Sphinx: If we do not solve its enigma, we will perish.
Still, our knowledge, which is at the very base of action, is limited.
Science necessarily includes a part of uncertainty: we never know the whole truth and, in addition, at every moment new factors can appear, so that scientists must always be prepared to revise their position. However, such considerations must not prevent the adoption of legal rules. If we had waited for unanimous approval by all the scientists in the world before adopting safety regulations for nuclear activities, today there would by practically no such rules in this field. At a certain moment decision makers must make up their mind: their action will be strongly influenced by the awareness that the public may have of the problem. Thus, the process is a complex one composed of different sequences: facts - scientific findings- knowledge -awareness - decision-making, and the formulation of legal rules.
Taking into account these considerations, we may speak of a global challenge for international law. In the process that has been represented, we arrive now at the last stages, at least as far as certain aspects of global change are concerned: In some cases some legal rules already exist2 and must be further developed; in others, decisions still must be taken and translated into international legal rules.3 Anyway, even by now it can be useful to ask the question, what are the implications of global change on the international legal system, and what developments may be expected for the coming decades?
It is submitted that global change modifies the functions of the international legal system. Legal rules must be drafted in new fields, using new methods; existing rules must be implemented, sometimes by unusual means. Thus, new developments in the exercise of these functions are to be examined. However, such changes may also have an impact on the very structures of the international system. Reflections on the different aspects of such implications will form the second part of the present study.
The impact of global change on different functions in international law
In all legal systems different functions have to be fulfilled: legislation, execution, and control over the interpretation and the implementation of rules. One of the main characteristics - and one of the causes of the shortcomings - of international law is that although these functions exist, there are no corresponding organs that would ensure them on a generally obligatory basis. Law-making is still an occasional operation, based on the will of states; there is no executive power in the international field and international jurisdiction can only function with the consent of the concerned governments. Thus, modifications in the functions of international law may have a different scope than in the national legal systems.
Two aspects of such modifications due to global change seem to be of particular significance: the modifications in the law-making process on one side, and those in the implementation of rules on the other.
A. Implications of global change for the law-making process
The most dramatic change that occurred in international relations in the second half of the century was the expansion of the realm of international legal rules. These now cover large fields that formerly either fell into the exclusive jurisdiction of states, or did not exist at all as a matter for legal regulation. Examples are numerous in both categories. One may mention for the first field the protection of human rights, the improvement of labour conditions, health care, in addition to a number of economic activities; while for the second field one immediately thinks of the development of poor countries, the control of the production, trade, and use of drugs, the fight against terrorism and, of course, the protection of the environment.
It must be noted that in all these fields bilateral cooperation, which has been the general rule for international law, now only plays a secondary role: most actions need a multilateral approach. It seems that this fact is not sufficiently well understood. Environmental protection is a good example. At the end of the 1960s and the beginning of the 1970s, when growing environmental awareness had made it necessary to envisage the problem of international protection of the environment, the first approach of most international lawyers was to consider the problem as a conflict between two sovereignties caused by transfrontier pollution. Although, in order to face the more and more numerous environmental problems, multilateral conventions were multiplied in the 1970s and 1980s, even now there is a general trend among international lawyers to limit their approach to a rather archaic bilateral one. The evolution and broadening of the minds in this field should certainly be one of the consequences of global change.
As far as international legislation is concerned, the most obvious consequence of global change is the rapidly growing number of multilateral treaties, often covering fields and problems that either did not exist or have not formerly been discovered.
The complexity of such problems leads to a second consequence, which was hardly understood at the beginning. At a certain stage of the law-making process, problem areas cannot be treated separately. The first approaches to environmental protection were essentially sectorial: separate norms and rules were adopted for continental waters, the sea, atmospheric pollution, and wildlife conservation. An important step forward was the terminology used in the UN Convention on the Law of the Sea,4 which speaks of the protection and preservation of the marine environment. Apparently, this means more than only the water of the sea. Moreover, Article 195 of the Convention imposes upon states the duty "not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another."5 Thus the interconnection between different components of the environment has been recognized.
The following stage in this evolution was the understanding that, although sectorial approaches to environmental problems- handling separately water pollution,6 sea pollution,7 air pollution,8 and wildlife conservation9 - are still important, more attention should be paid to the substances that create pollution and that may be found in all the different areas. The latest approach to the protection of the biosphere consists thus in the international control of potentially harmful substances at the different stages of their existence: production, transport, trade, use, and elimination of chemicals and of radioactive material.10
This evolution already implies a strong tendency toward globalization: the international transportation of toxic or dangerous chemical substances or waste, the "exportation" of harmful activities to other mainly developing -countries cannot be controlled without worldwide cooperation. The situation is the same in other fields, such as the trade of drugs or the struggle against certain diseases such as AIDS. In addition, during the last decade we became aware of the existence of problems that cannot be approached without planetary cooperation and thus legislation: for example, the depletion of the ozone layer, the modification of the global climate, and the threats against the world's genetic heritage. Different factors inherent in such problems need new approaches in the legal techniques used by the international community for law-making.
a.
One of the most striking features of the international legislation since 1945 is the enormous importance of "soft-law" instruments, for example, the texts that were adopted by states without being legally binding. Of course, the first and most evident cause for this is the expansion of the number of international bodies that have not been endowed with the power to adopt mandatory texts, but only recommendations. As a consequence, this is the only way to address their member states. However, one should not forget that originally such resolutions could only correspond to the current work and management of the concerned international body, while in reality resolutions of certain international organs, such as the UN General Assembly, play an important role in the international legislative process. This is not the place to discuss the legal nature of such resolutions and especially their binding force. At a minimum it can be asserted that they participate in the creation of new international law rules, formulating for the first time emerging social values that later on may be formally confirmed by international conventions. This was the way international law was developed in new fields such as the international protection of human rights, or the status of outer space. For environmental protection, the evolution is less lineal, but texts such as the 1972 Stockholm Declaration11 or the World Charter for Nature, adopted and solemnly proclaimed by the UN General Assembly on 28 October 1982,12 certainly have paved the way for formal legislative activities.
b.
Soft-law instruments can also play a more technical role. "Resolutions," "conclusions," and "guidelines," may include technical details that are to be evaluated by states and may be included, at the end of the day, either in a formal international treaty13 or introduced in national legislation.14 This can be explained by the newness of the solutions suggested by the international bodies - understanding that such newness is mostly imposed by a new situation that has to be coped with.
c.
Soft-law rules can also be included in formally binding international instruments, i.e. treaty provisions. As a matter of fact, quite often such provisions contain nothing more than strong recommendations for the contracting parties. Without speaking of clauses such as "each State Party to this convention shall endeavor, in so far as possible, and as appropriate for each country..."15 which can hardly be con sidered as imposing strict obligations upon states, the content of the treaty itself may be, in reality, nothing more than a declaration of intention. A good example for this is the 1979 Convention on Long-Range Transboundary Air Pollution.16 The contracting parties "are determined to protect man and his environment against air pollution and shall endeavor to limit and, as far as possible, gradually reduce and prevent air pollution...."17 They also will "develop without undue delay, policies and strategies which shall serve as a means of combating the discharge of air pollutants.''18
They also shall undertake "to develop the best policies and strategies" in order to combat air pollution.19 As a matter of fact, in spite of its appearances, this convention is an operative one and has created a useful framework for everyday cooperation as well as for the development of further international rules that are more stringent.20
d.
A growing number of treaties do not include immediate obligations for the contracting states, instead they develop programmes of action. One of the first was the Paris Convention for the Prevention of Marine Pollution from Land-Based Sources, adopted on 4 June 1974, which provides that, for carrying out the undertakings resulting from that Convention, "the Contracting Parties, jointly or individually as appropriate, shall implement programmes and measures.. "21 It may be considered that such provisions are between "soft" and "hard" treaty obligations, since the content of the duties resulting from the treaty are not defined. As a result, it could hardly be enforced by an international jurisdiction.
e.
Not very different from this method is that of the "pactum contrahendi," i.e. the conclusion of a treaty that mainly provides for cooperation between the contracting parties, hoping that this may result in the adoption of more precise obligations. One of the earliest models in this field was the Convention on the Conservation of Migratory Species of Wild Animals, adopted in Bonn on 23 June 1979, according to which the parties shall endeavour to abide by agreements covering the conservation and management of certain migratory species.22 The most important application of this method, so far, seems to be the 1985 Vienna Convention for the Protection of the Ozone Layer, according to which the parties shall in accordance with the means at their disposal and their capabilities:23 "Co-operate in the formulation of agreed measures, procedures and standards for the implementation of this Convention, with a view to the adoption of protocols and annexes."24
As a matter of fact, the Montreal Protocol of September 1987 had determined the emission levels that different contracting parties should respect and that constitute a directly enforceable legal obligation.25
f.
The Montreal Protocol26 and the two Protocols implementing the 1979 Geneva Convention on Long-Range Transboundary Air Pollution initiated a new method in the development of international regulations that may be called the method of relative standards. According to the Helsinki Protocol of the 1979 Geneva Convention, which provides for the reduction of sulphur emissions: "the Parties shall reduce their national annual sulphur emission or their transboundary fluxes by at least 30 per cent as soon as possible and, at the latest by 1993, using 1980 levels as the basis for calculation of reductions."27
Thus, the obligations accepted by this treaty necessarily vary from one contracting party to the other, since their sulphur emissions in 1980 were not the same. This method seems to be an important innovation in international treaty law.
g.
Difference between the obligations of contracting states may also result from the recognition of the difference between their level of development. The best example of this is Article 5 of the Montreal Protocol on Substances That Deplete the Ozone Layer.28 This provision sets different standards for developing countries than those for industrialized states, but this principle has already been proclaimed in the 1972 Stockholm Declaration.29
h.
The use of umbrella conventions is very frequent in all the new fields where global change has modified international legislative techniques: for example, the international protection of human rights,30 the legal regime of outer space,31 the new Law of the Sea,32 and, of course, environmental protections.33 This means that, a first agreement had to be reached on the principles of common action, while the setting of more precise rules and standards was the aim of the cooperation in the framework that has been created. The fact that international organizations, such as UNEP, play a growing role in the international legislative process is certainly one of the factors that has fostered this development.34
The drafting and the adoption of regional conventions following the same pattern makes it easier to adapt generally agreed upon principles and rules to specific conditions. In the field of the international protection of human rights, this is certainly the case and the regional seas programme of UNEP - which combines it with the technique of umbrella conventions completed by protocol - certainly corresponds to the requirements of realism and efficiency.
i
More and more often, the drafters of a treaty feel it necessary to provide for an easy updating of the instrument. This is due to the rapid progress in knowledge of the biosphere, its deteriorations, the new forms of pollution, and the new harmful substances that are destroying our planet. The most useful technique in this regard is the adoption of technical norms and specifications -e.g. a list of polluting substances or endangered species- in the form of annexes of the main treaty and of special procedures for modifying such annexes without being obliged to resume the traditional, slow procedure for the modification of treaties.35 This approach shows the intrusion in international law of a new element, the time factor, to which later developments will be devoted.
All these innovations show implications of global change for international law' even if in some cases the use of such new methods and legal techniques started at the end of the 1940s. However, new approaches mostly stem from the necessity to solve international environmental problems. They all seem to be a part of the fundamental changes that international lawyers have to accept. Indeed, they show a trend towards a legal system in which the intricate web of international relations, in a growing number of fields, must be more flexible. The whole evolutionary process shows the need to negotiate in order to solve problems, rather than to adopt strict rules, understanding that some fundamental principles and rules are to be defined by determining the goals and creating an adequate framework for action. Dynamism, i.e., the adaptability and openness for change, is also a part of the innovations: this might even be one of the major contributions of global change to the evolution of international law, since it places the whole legal system in a new perspective, that of time.
B. Implications of global change for the implementation of international legal rules
Another aspect of the functions of international law, on which global change certainly has an impact, is the implementation and the enforcement of international legal rules. Indeed, the new requirements modify the tasks of states, they make it necessary to use or to create new international mechanisms for the surveillance of the implementation of such rules and they change our approach to international liability.
a.
Quite often, international treaty rules related to environmental protection constitute an intrusion into the traditional sphere of action of states: for example, control of industrial or other activities, surveillance of the state of the environment,36 control of the exportation and importation of substances such as chemicals, waste,37 or of parts or derivatives of protected specimens of wild flora and fauna,38 etc. In all these fields state authorities must intervene in order to implement the treaty obligations and quite often this means the adoption of specific regulations in national legal systems. In a way, one might speak of a non-self-executing provision, which can be implemented only if the national legislation has adopted corresponding measures. In some cases such measures entail the designation of authorities that can deliver permits39 or ensure the contact with other national authorities.40 In certain situations penal sanctions are foreseen by treaty provisions: of course they can only be specified and enforced by corresponding national rules.41 Such methods justify the theory of one of the greatest international lawyers of the century, the late professor George Scelle, on the "dédoublement fonctionnel."42 This means that, since there is no central executive power in international law, as a rule states have to ensure this function. However, whenever they act for the implementation of international legal rules, they do it on behalf and in the name of the international community as agents of the latter.
b.
New international mechanisms for the surveillance of the implementation of treaty obligations by states are more and more numerous and more and more used. The term "international" may signify another application of the theory of the "dedoublement fonctionnel": a surveillance exercised by a state in the name of the international community. However, most often this means that an international body ensures this task.
Article 218 of the Law of the Sea Convention is a good illustration of the first method.43 According to it, when a vessel is voluntarily within a port or at an offshore terminal of a state, that state may undertake investigations, and, where the evidence so warrants, institute proceedings in respect of any discharge from the vessel outside the internal waters, territorial sea, or exclusive economic zone of that state in violation of applicable international rules and standards.44 Such surveillance thus covers acts that take place either on the high seas or in internal waters, territorial sea, or exclusive economic zone of another state, although in the latter case the port state cannot institute proceedings against the polluter, unless it is requested to do so by the concerned state.
Another method, which is gaining more and more importance, is the use of existing international bodies or the creation of new ones for the surveillance of the implementation of international legal obigations. Initially, such mechanisms were mainly created in the field of the international protection of human rights, with rather encouraging results. Different solutions are used: the international body may be an organ where states are represented, like the UN Commission on Human Rights,45 an expert group, like its Sub-Commission on the Prevention of Discrimination and Protection of Minorities,46 a quasi-judiciary organ like the European Commission of Human Rights,47 or a real tribunal, like the European or the American Court of Human Rights.48 The procedure depends not only on the nature of such bodies, but also on the progress of international awareness and cooperation in this field. Communications may be addressed in some cases by states,49 in others by individuals or groups of individuals,50 or even by both categories51 to determined bodies. Sometimes these are real applications submitted to strict rules of admissibility.52 The role of international public opinion is always very important, although the form of its intervention may be different according to the different procedures. Non-governmental organizations participate in the discussions of the UN Commission on Human Rights and are given the floor, but confidentiality is the rule in certain procedures.53 However, at the end, findings and reports on violations of human rights are generally made public and in some cases this constitutes the main sanction.54 In other circumstances the procedure ends with a formal decision of an international court of human rights that may condemn the concerned state to reparation.55
Such a complete outfit certainly does not exist for the surveillance of the implementation of obligations related to the environment, at least not yet. However, the "reporting system" is more and more often used. One of the models was Article 11 of the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL),56 according to which the contracting parties undertake to communicate to the Intergovernmental Maritime Organization, inter alia, the text of laws, orders, decrees, regulations, and other instruments that have been promulgated on the various matters within the scope of the convention, as well as official reports that show the results of the application of the Convention, and also an annual statistical report of penalties imposed for infringement of the Convention. The latter communications are to be circulated to all parties.57
The most recent worldwide international convention related to the environment was the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, of 22 March 1989,58 which shows some progress when compared to the 1973 London Convention,59 but of course, between the two instruments quite a few others have organized reporting systems. According to the Basel Convention, the Parties shall inform each other through the Secretariat - which is at this moment UNEP - of transboundary movements of hazardous wastes in which they were involved, on the measures adopted by them in the implementation of the Convention, as well as of accidents occurring during the transboundary movement and disposal of hazardous wastes and on the measures undertaken to deal with them.60 The Secretariat then prepares reports based upon such information, as well as upon, as appropriate, information provided by relevant intergovernmental and non-governmental entities.61 It may be presumed that such reports are to be submitted to the conference of parties, since this body created by the Convention "shall keep under continuous review and evaluation the effective implementation of this Convention."62 As this had been stressed, the role recognized to non-governmental entities, such as associations, for ensuring the implementation of a treaty related to environmental protection is an important step forward.
Further developments in this direction are to be envisaged: in fact, they are needed more and more. Some proposals have been made tending to the establishment of a real international jurisdiction in this field.63 At a first stage, surveillance of the implementation of state obligations should be expanded to all the major treaties and ensured by independent international expert bodies. They should agree to consider communications submitted by non-governmental entities. Final reports on the findings of such bodies should be publicized and submitted to competent UN or other such organs, without excluding the possibility of submitting the case to an international jurisdiction.64
An overview of the international practice concerning the place and role of international liability in the field of environmental protection also shows the impact of global change on our traditional conceptions. The liability of states in international law is generally understood as the consequence of damage caused by a state to another and generates the obligation to repair such damage, generally by adequate compensation. The international practice shows that, in spite of a mass of writings, this pattern hardly works when environmental prejudice is at stake. Several reasons can explain this: the causal link between the supposed harmful activity and the damage may be difficult to establish, the identification of the source in the legal sense of the term may be difficult if not impossible to ascertain, and the evaluation of the damage suffered by the environment raises very hard problems.65 In order to escape these obstacles, states, which never have agreed to draft precise rules on international liability in environmental matters, prefer to transfer the problem of compensation for such damages from the inter-state to the inter-individual level, by providing for procedures that allow the victim of the damage to be compensated by suing the source directly, who is generally a private person.66 The best description of the present situation is given in Article 235 of the Law of the Sea Convention,67 if its meaning is expanded to other aspects of the environment: "States shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction."68
As a matter of fact, international conventions provide for procedures ensuring at least partial compensation for the damages that seem to be the most considerable: those caused by nuclear accidents,69 those resulting from the pollution of the sea by hydrocarbons,70 and damages to the Antarctic environment by mineral resource activities.71
But the same article of the Law of the Sea Convention also opens a door for a larger conception of international liability. According to the first paragraph, "states are responsible for the fulfillment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law "72
This clause makes no distinction between the obligations resulting from a damage caused to another state and the consequences of the breach of a treaty obligation. The preamble of the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal reproduces this provision as a general principle, adding that, "in the case of a material breach of the provisions of the convention or any protocol thereto, the relevant international law of treaties shall apply."73
Most writers in international law are hypnotized by damage as the principal if not the exclusive condition for liability. However, as has been demonstrated, damage is extremely hard to establish in certain fields, while potential violations of the thousands of existing treaty provisions, which tend to protect the environment, become more and more a reality. One of the consequences of global change is the fantastic development of international regulations in different fields, and the main task of the international rule concerning liability seems to ensure their respect. In this regard it is irrelevant whether damage has occurred: a state that authorizes or tolerates the dumping of wastes prohibited by the 1972 London Convention74 is liable whether the existence of damage has been proven or not. It is also irrelevant whether there is another state that pretends to be the victim.
Another consequence of this approach is that international "commons," such as the high seas or outer space, can be better protected. In the present state of international law, no state could file a claim for damage that was suffered not by itself but only by the high seas, or for the pollution of outer space. The recognition of international liability for the violation of a treaty provision allows such an action.
Thus, international liability stresses the public-law character of international law, instead of the still dominating civil-law concepts. Would it be possible to imagine that in the field of the protection of human rights a state would be liable only if there is material damage caused to a person? A parallel evolution of our conceptions in other fields must necessarily follow. This directly leads to the implications of global change for the structures of the international legal order.